from the censorship-in-action dept

If you're unfamiliar with it, the SpicyIP blog is a wonderful blog covering issues related to copyright and patents in India. We've linked to it a bunch over the past decade. And now it's going through something of a rite of passage for sites on the internet: the absolutely bogus takedown notice. In this case, it was informed by Google that a certain page on the site was to be de-indexed following a DMCA notice claiming that SpicyIP was infringing on the copyrights of Saregama, a large Indian music label. The DMCA notice, helpfully found at the Lumen Database, shows that the organization had sent a list of 99 URLs that it claimed infringed on:

The sound recording or other musical works /song titled APNI TO JAISE TAISE sung by KISHORE KUMAR written by PRAKASH MEHRA and music composed by KALYANJI ANANDJI being made available for streaming and/or download without license/permission from Saregama India Ltd.

Out of those 99 URLs, SpicyIP's, was definitely one. Except that SpicyIP URL was clearly not at all infringing. It was, instead (as you might expect) an analysis of a copyright dispute over the Bollywood song in question. So, at least they identified the right "song" but nothing in a blog post discussing a legal copyright dispute magically makes that blog post infringing itself. SpicyIP rightly notes just how problematic this notice-and-takedown process can be in leading to outright censorship:

Even if SaReGaM ‘correctly’ identified 98 infringing links, is the takedown of a lawful post a legitimate casualty to the process? What if the post was a criticism of SaReGaMa’s or Google’s policies, or critical of the legal process?

The present instance is the result of the US Digital Millennium Copyright Act, (S. 512) which implements a ‘notice and takedown’ regime for intermediaries to remove copyrighted content. The provision rests intermediary safe harbour for publishing putatively infringing content upon the expeditious removal of notified links, and subject to examining any counter-notice, explained in more detail here.

The Copyright Act (S. 52) and Copyright Rules (R. 75) in India, incidentally, have a similar procedure, which creates a ‘notice and takedown’ regime for intermediaries which host ‘incidental or transient’ links to copyrighted content, which includes a counter-notice mechanism with the right to reinstate the content in the absence of a court order within 21 days. Unfortunately, it is unclear what intermediaries fall within the scope of this procedure, and in the absence of such clarity, the Delhi High Court has created a separate regime for certain intermediaries in Myspace v Super Cassettes. This judicially created regime is rather vague and does not include even the minimal procedural safeguards available under the Copyright Rules.

Regardless of the form of notice-and-takedown, it is apparent that placing an obligation to police copyright infringement on intermediaries create perverse economic incentives on private parties like Google or YouTube to over-comply and take down legal content. This is not solely attributable to the intermediaries’ practices themselves, but the policy and legal decisions which are created and are supposed to to strike a balance between access to knowledge and copyright protection in the digital age.

SpicyIP admits that "it's funny" that such a bogus takedown would target a copyright law blog, with people who can easily respond, but the same is not true for many other on the receiving end of such a takedown notice. As SpicyIP notes:

Yet, had it happened to a non-lawyer, or even someone who had ceased to take interest in their old blog, as it often does, it would result in the permanent removal of public information from an index which serves as the gateway to the internet, due to the ‘mistakes’ of private parties whose interests do not coincide with public access. What does this mean for the future of access to knowledge?

The blog further points out that this problem is likely to get worse, not better. We've already been talking about how Article 13 could soon require automated takedowns and content monitoring, India is exploring a very similar law to put more liability on the platforms to not allow any infringement at all. In such cases, the problem becomes much, much worse, and some content may never be allowed to be uploaded at all, even if it's perfectly legal.

from the copyright-is-bad-at-this dept

Okay, we've got quite a story today about how copyright is a total mess and not really fit for the way the internet works today. It involves a comedian, Miel Bredouw, a short silly (perhaps NSFW) video she made, the asshole dudebros over at Barstool Sports, Twitter and the DMCA. There are so many details to parse out before we get to the lessons to learn from this, so let's take this one step at a time.

More than two years ago, in November of 2016, Bredouw made a 36-second video in which she muses on the fact that the well known (and probably NSFW) song Slob on my Knob by Three 6 Mafia, can be sung to the tune of Carol of the Bells, which (as you probably know) is a classic Christmas carol. The video is embedded here, though (again) I warn you that you might not want to watch it at work:

Anyway, that video went fairly viral, as one of many videos on YouTube with, um, unique takes on the Three 6 Mafia song.

Fast forward to the end of last year, when Barstool Sports enters the picture. We've written about Barstool Sports twice -- and both times involve them being (1) total assholes and (2) totally ignorant or abusive about intellectual property law. If you're not familiar with Barstool Sports, let's just say that it's the kind of work environment where it wouldn't just be okay to watch a video like the one above while at work, but it would likely be encouraged.

Anyway, in December, Barstool Sports took Bredouw's now two-year-old video and reposted it to their own Twitter account, without any credit (and certainly suggesting it was a Barstool Sports production). Bredouw tweeted at them that this was uncool. Yesterday, Bredouw then tweeted out a thread about what happened in the intervening two months, and it is quite a story.

After Barstool ignored Bredouw's request for credit, she filed a DMCA notice with Twitter, who took the video down. Once the DMCA takedown occurred, Barstool Sports finally reached out to Bredouw with an apology, asking her to "remove that strike" from their account:

In December, they reuploaded one of my videos without credit. I asked for credit, was ignored, and filed a DMCA takedown. Twitter quickly took it down and IMMEDIATELY Barstool's social guy sends me an email. I don't respond. He emails again in early February. I don't respond. pic.twitter.com/GYLYOnHFXq

Not really caring about what Barstool Sports wants, Bredouw ignores the request. And then another request in early February. A few weeks go by and apparently things "escalate" with the company's General Counsel, Mark Marin, who is, like, a real lawyer and everything, sending Bredouw slightly more urgent emails offering increasing amounts for her to retract the DMCA notice. It starts with an offer of a $50 giftcard to Barstool's merch store, to eventually an "anxious" offer of $2,000 cash:

I honestly thought it was finally over after two weeks of silence. Until this morning, I get another email from legal guy now offering me $2000. Which I would never take (10000% fuck barstool sports) but EVEN IF I wanted to... extortion? Like in what world. pic.twitter.com/s561QpZBPX

Apparently, Barstool Sports, in a manner that only Barstool Sports folks would think makes sense, decided that the proper course of action was to then have a bunch of people totally bombard Bredouw with demands to read her messages (as if she hadn't been):

Then the full on harassment begins. I didn't screenshot all the messages before deleting but across my IG, my twitter, my email, my PODCAST'S INSTAGRAM, TWITTER, AND EMAIL they send me these messages. Hundreds. I block them. They find me again. Still, I don't respond. pic.twitter.com/bpPEtNupBJ

We believe that this material was removed as a result of an error. The content shown in the video was sent to us from a user who claimed to have full rights to license and assign the content to us to post on our account. After receiving this DMCA Notice, we reached out multiple times through multiple platforms (email, twitter DM) to attempt to resolve the issue directly with @miel, but @miel has not responded to any of our attempts to communicate and even blocked us from DM'ing without any justification. Unless and until @miel elects to engage in a discussion to determine whether we had the rights to post the video, we continue to assert that we had the rights to post the content that was removed.

I guess you could argue that Barstool Sports deserves at least partial credit for accurately describing that they tried to reach out to Bredouw and she ignored them. Though, the whole "blocked us without justification" is kind of rich -- considering how they bombarded her with demands and, frankly, it was not her problem to deal with. But that last line is utter bullshit. Even a quick review of the basic facts would demonstrate to Barstool's very real, serious lawyer who has a JD and everything, that it wasn't she who submitted the video to them and it was obviously her video in the first place.

Either way, Twitter then did exactly what it should do under the law, upon receiving the counternotice, and let Bredouw know that it would be putting the video back up unless she filed a lawsuit withing 10 days. This is not some awful, arbitrary move by Twitter, this is how the DMCA's counternotice process works (see 512(2)(B) and (C)). Bredouw has no interest in suing (indeed, seems to have little interest in dealing with any of this) and actually it's not even clear she could sue, as I'm not sure she registered a copyright on the video in the first place.

"Where Barstool went wrong is that when she refused to respond and it became clear she had no intention of speaking with us we should have ended it," Barstool's founder, Dave Portnoy, told Business Insider in an email. "Unfortunately Barstool Sports has idiots in our company much like many other companies and those idiots acted like idiots. I regret our lawyer offering a 50 dollar gift card to our store not because it's illegal in any manner but it's just so moronic and makes us look like assholes. That's why lawyers should not be on social media."

Of course, the fairly obvious backdrop to what's happening here is the requirement under the DMCA for internet sites to have a "repeat infringer policy," in section 512(i). There have been a bunch of lawsuits lately exploring just what that repeat infringer policy must look like, but it's fairly critical for sites like Twitter to have one if it wants to make use of the DMCA's safe harbors. And thus, if an account -- like Barstool Sports -- gets a bunch of strikes, Twitter will shut down its account. The ongoing theory behind Barstool's very real lawyer and his desperate pleas is that Barstool Sports already has a few DMCA strikes, and it's getting close to losing its Twitter account.

That's nonsense. None of this should be on Twitter, who is just accurately following what the law enables, and it's the process that most of the time the very same people who are now criticizing Twitter would be celebrating, because it's what allows companies to minimize the (very real) damage of bogus takedowns. If the takedown really is bogus, it should be easy to get the video back up. But what if it's the counternotice that's bogus? That's... trickier. As the law is set up, then the only response is to sue. And, again, it's not clear that Bredouw even could sue if she wanted to. She would have needed to register the video beforehand, and even then the copyright on the video would be a relatively thin one, as much of the video is actually a mashup of two songs that she does not hold any copyright on (to be fair, the music for Carol of the Bells, is in the public domain, as a work composed in 1914 (sorta)*). The lyrics, though, are under copyright -- but not to Bredouw. The video could still potentially get a copyright, but it would seem that whoever holds the original copyright to Three 6 Mafia's songwriting would have an even stronger claim.

Either way, this highlights two key points: firstly, the DMCA was designed for very different situations than this one. Which is why this fits so badly on all fronts and no one is happy. Bredouw didn't want Barstool Sports taking credit for her viral video. Barstool Sports didn't want to lose its Twitter account. Twitter doesn't want to lose its DMCA safe harbors.

Secondly, the reality is that we shouldn't need copyright to solve this kind of situation anyway. That's not what worked here. Indeed, copyright has created a solution that pisses everyone off. What worked was social shaming. Bredouw's Twitter post simply made everyone aware (or reconfirmed for those who already knew it) that Barstool Sports are a bunch of dudebro assholes (which the company seems to fully admit to). The real issue here was one where Bredouw didn't want the economic advantages that copyright enables, but rather something that is not actually tied to copyright: credit for her, um, let's call it "creativity." But that's not what copyright was designed for. But, because it's the tool that's available, that's what was used to take down the misappropriated, un-credited video, and that resulted in a legal process ill-suited to what the dispute was really about.

In short: copyright is a really big and misguided hammer for situations such as this, and public shame is a much better tool. But, we shouldn't be attacking Twitter for following the law appropriately. And we should be pointing out that Barstool Sports truly are a bunch of assholes.

* Dammit, this post is seriously long enough not to go down this rabbit hole, but we're already here, so let's go: Wikipedia notes that Carols of the Bells had the music written in 1914, but based on Ukrainian folk music. But there are lots of other dates involved with the song, including its first "Western" performance in 1919 and its first performance in the US in 1921. The article also notes that while the music is in the public domain, the lyrics are still under copyright. That struck me as odd, but apparently American composer Peter J. Wilhousky got a copyright on a new set of lyrics for the music in 1936 -- meaning that they are still under copyright (even though when he got that copyright, he would have assumed that the lyrics went into the public domain many years ago). Either way, none of the lyrics are used in the video at issue here, so the use of the music is clearly public domain.

from the clever-girl dept

We've seen plenty of ways in which the DMCA process has been used, and often abused, for purposes not intended by the lawmakers who crafted it. With everything from pure attempts to censor damning information to oblique fuckery heaped upon a competing business, folks have used the DMCA as a blunt tool. Given the context in which this is done, it is nearly always the case that you can't root for anyone issuing those sorts of DMCA takedowns

But perhaps we've found the exception that proves the rule. TorrentFreak has a fascinating story about a game developer that issued a DMCA notice to Steam... for its own game. Why? Well, because apparently that was the only way to wrestle back control over the game's distribution from a publisher the developer says skipped out on the publishing contract.

However, a takedown notice game developer Ammobox Studios sent to Steam recently is far from typical. The company asked the game platform to remove their own game “Eximius: Seize the Frontline” after it ran into trouble with its publisher. According to the game developer, the publishing partner, TheGameWallStudios, went dark and stopped making payments.

“Long story short, we had to file a DMCA against our very own game on Steam to wrest it off the Publisher. The DMCA has just kicked in resulting in the game being taken off the Steam Store Page,” Ammobox explained.

So the timeline goes like this. Ammobox gets a publishing contract for the game with TheGameWallStudios. TGWS puts the game up on Steam. TGWS then, according to Ammobox, goes silent on the payments it was to make to Ammobox, but still has the game up on Steam's store, generating sales and money. With the contract breached, TGWS has no right to publish the game, which suddenly reverts to being a "pirated" version of the game. Ammobox issues the DMCA to Steam and the game comes down.

To add just one more good guy to this story, Steam itself apparently was very helpful to Ammobox, even after receiving the DMCA notice.

The game was removed from the store for over a week. While it was no longer for sale, people who previously bought it could still pay it. Then, after nearly two weeks, the developers regained control of their own game, with help from Steam.

“The fraudulent publisher Thegamewall has been removed as publisher in our Steam store page. We would like to thank Steam for assisting us during this terrible ordeal,” Ammobox announced this week.

Now, Steam has a reputation, arguably deserved, of being far more friendly to publishers than developers. At some level, this makes sense, as publishers are generally the customer/partner of Steam's as opposed to the developers. For Steam to, in this case, recognize that the developer had been wronged and to work directly with the developer to get the game back up with payments flowing to the proper recipient ought to be getting the attention of developers all over the place.

Meanwhile, Ammobox still has to resolve the owed payments from TGWS. But at least they get a nod for a creative non-dickish way of using the DMCA process.

The first one received targeted a post of Volokh's hosted at the Washington Post. Hilariously, it claims Volokh is the real troll here.

A group of trolls/rivals are continually targeting us and creating copied content to bully, defame, and threaten our business and staff. Also, there is same content has been posted on different sites. The respective links of the copied content are mentioned below.

That's not what DMCA notices are for, even if any of these assertions were true. But none of it is true, starting from word one. The publication of a criminal complaint cannot be defamatory, and in no way did Volokh "bully" or "threaten" Don Lichterman, who previously forged a court order to try to remove content detailing him being sued for copyright infringement. Volokh covered this case, as he has several others where the same tactics (forged court documents) have been used.

The DMCA notice doesn't even claim there's been any copyright infringement. I guess that's a good thing, considering one of the URLs targeted links to the criminal complaint filed against Lichterman for forging a court order.

The second notice is a bit more on point, even though it's no more honest than the first one. This one is a delisting request tied to a court order, so there's no abuse of the DMCA process. That being said, the court order doesn't say what Lichterman wants it to say. Here's Volokh's summation of the second bogus takedown attempt.

As best I can tell, the theory behind the deindexing request is that this order somehow requires that Mr. Lichterman's name be redacted from the Criminal Complaint, and that therefore my post, which links to a copy of the complaint, should be deindexed. But of course nothing in this order so requires: It appears that the court ordered that the presentence report remain sealed (as is normal with such reports), and required the removal of information from certain "sentencing submissions" -- but it says nothing about the Criminal Complaint, which is a public document. (The Complaint was originally filed under seal, but was unsealed a few weeks later, as the prosecution began.)

The Lumen Database's post of the takedown request sums up the problem with this request a little more succinctly (although it's unclear whether Google added this or Lumen did):

This Judgment does not apply to search engine providers, including Google Inc.

Not only is Lichterman wrong about the contents of the court order (perhaps deliberately wrong), but he's wrong about who it actually affects. Lichterman is unclear about a lot of things and seems to assume just forwarding a court order referencing sealed documents should be enough to push Google into action.

But these tactics have been used too often to be effective anymore. Multiple sites have covered fraudulent takedown notices -- some including forged court documents and others involving entirely falsified lawsuits snuck past inattentive judges. A rogue strain of "reputation management" emerged over the last few years -- one that operates using nothing but disreputable tactics. Google is paying more attention to claims targeting press coverage of criminal actions or other unflattering content and, for the most part, has refused to humor these bogus requests.

All Don Lichterman has succeeded in doing here is draw more attention to his prosecution for forging court documents. He's only bullying himself.

from the someone-deserves-to-be-fired dept

Of all the stupid things a lawyer can do, it's difficult to think of many more stupid than to send a totally and completely bogus copyright infringement claim, arguing (incorrectly) a violation of DMCA section 1201 (the anti-circumvention part of the DMCA) to Cory Doctorow. Among many other things, Cory is one of the leading voices about the problems of 1201 and has fought for years to dismantle it. And thus a case that actually challenged 1201 might be interesting, but in this case, there's no valid 1201 case at all.

As explained in an EFF blog post, Bird, one of the bigger app-based scooter rental services out there, sent a completely bullshit "Notice of Claimed Infringement" to Doctorow and the parent company of Boing Boing, Happy Mutants. Over what? Over a BoingBoing post from last month that reports on how people are offering $30 conversion kits to turn a former Bird scooter into one that you yourself can use. Specifically, the article talked about how many Bird scooters were being impounded, and could potentially be sold off at some point to people who might want to convert one on the cheap into a personal electric scooter.

The letter--sent by Bird's "Sr. Corporate Counsel", Linda Kwak (whose experience appears to be focused on employment law, not copyright law)--makes a number of ludicrous claims. Thankfully, Doctorow and BoingBoing have EFF to back them up and respond forcefully to this kind of threat, with a response written by EFF senior staff attorney Kit Walsh. Here's a snippet:

First of all, Mr. Doctorow is well within his First-Amendment-protected rights to report
on the existence of these conversion kits and their use. Mr. Doctorow’s article does not
encourage any form of illegal conduct, but even if it did, the First Amendment does not
permit liability based solely on encouraging others to break the law. Even in cases where
a person advocates violent crimes, the First Amendment only permits that advocacy to be
punished when it is intended to and likely to imminently cause the lawless act. E.g.,
Brandenburg v. Ohio, 89 S.Ct. 1827 (1969). The Boing Boing article falls far short of
meeting any legal test that would allow a court to impose liability on its author, nor have
you identified any basis for doing so. Mr. Doctorow would have had every right to
advocate for Bird scooters to be destroyed or stolen; instead he simply reported that they
could lawfully be acquired at auction and lawfully modified to function as personal
scooters.

Second, you cite the anti-trafficking provisions of 17 USC 1201, alleging that the scooter
conversion kits are circumvention devices that violate Section 1201, but that does not
appear to be true. Again, Happy Mutants would have every right to report on unlawful
conduct or even to encourage it, but here the conduct being described seems entirely
within the law.

“Conversion kits” are apparently just replacement motherboards, such as the stock
motherboard for the Xiaomi Mijia m365 scooter. Installing the “kit” involves opening the
scooter, removing the motherboard containing Bird software, and replacing it with a part
that does not contain Bird software. As you note in your letter, the kit “allows the
user to replace the Bird code so that users may ride the Bird scooters without using its
app.”

It is not an act of circumvention to unplug and discard a motherboard containing
unwanted code. Likewise, a part that is used to replace the unwanted board is not a
circumvention device -- it substitutes for the part containing proprietary code rather than
circumventing technological protection measures that restrict access to the code or
prevent infringement. Use of a conversion kit does not appear to involve any access,
reproduction, or modification of any Bird code. We are likewise puzzled by your
assertion that your copyright in the Bird app provides a basis for a Section 1201 claim
against the conversion kits, since they do not appear to interact with the app at all.
You have not claimed that the Boing Boing article itself constitutes trafficking, nor could
you. It does not offer to sell or traffic in anything but rather reports true, newsworthy
facts. Attempting to expand Section 1201 to bar such reporting would fatally exacerbate
the First Amendment flaws already inherent in the statute. (Happy Mutants would also be
fully within its rights to link to a site such as eBay where the kits can be purchased, but,
contrary to your assertion, the article does not contain such a link.)

An assertion of Section 1201 is on especially shaky ground when it seeks to suppress
activity that does not infringe copyright, such as fair uses. The Librarian of Congress,
overseeing the Copyright Office, has repeatedly exempted from Section 1201’s
circumvention ban the noninfringing repair and modification of motorized land vehicles
(such as electric scooters), because barring those repairs and modifications would be
unjustified and harmful to the public. Those repairs and modifications actually do involve
circumventing access controls in order to inspect and modify copyrighted code, unlike
the conversion kits at issue here, and they nonetheless are noninfringing, fair uses.

As Walsh further explains in the EFF blog post, this really is incredibly crazy, given all of Doctorow's work on 1201:

Bird probably did not know that the journalist who wrote the post, Cory Doctorow, has been reporting on and challenging this overly broad law and its harmful consequences, both at Boing Boing and as a Special Adviser on EFF’s Apollo 1201 project, for years. They likely also didn’t know EFF has launched litigation to invalidate the law in its entirety and, in the meantime, has successfully pushed for numerous exemptions to the law -- including one that specifically permits repair and modification of motorized land vehicles (for instance, say, an electric scooter).

As fun as it might have been (again... fun for us) to have a legal fight about the nuances of Section 1201, it's pretty clear here that there's no claim to be made. The fundamental reason Bird doesn't have a claim is that Section 1201's ban on trafficking concerns products that circumvent either access controls or use controls on a copyrighted work. To simplify a bit, it concerns a device that cracks a technological measure in order to access or make an infringing use of a copyrighted work.

To turn a Bird scooter into a regular personal scooter, you just open it up and replace the motherboard that contains Bird code with a different motherboard (you could even use the official stock motherboard for this model of scooter, the Xiaomi Mijia m365). You literally throw away the copy of the Bird code residing on the unwanted motherboard, rather than accessing or copying or modifying it. We have long had serious concerns that Section 1201 can be abused to block repair and tinkering. But while the law is overbroad, it is not so broad that it prohibits you from simply replacing a motherboard.

And, of course, all this really does is call that much more attention to Doctorow's original article, and the possibilities for effectively getting your very own electric scooter on the cheap. It is utterly bizarre that anyone at Bird thought this was a good idea. Who knows if this was just the Bird lawyer going through the motions or someone else at the company directing her to do this, but at some point, companies really need to think more carefully about sending out the usual bullshit nastygrams, as they can really come back to bite a company.

from the dmca-for-censorship dept

Apparently the producers of the movie "Where Hands Touch," which is being widely panned as terrible (NY Times calls it a "gut-wrenching misfire" and notes "by the end of the movie, my jaw felt unhinged from dropping so often."), aren't responding well to the criticism. While some of the criticism is about the "plodding" storyline, much of it is about the main plot, which is about a black woman in Nazi Germany -- who appears to support the Nazi cause -- falling in love with a Hitler Youth.

The film got little attention in its theatrical release, but became available online recently, and apparently the producers decided that people tweeting negative things about it deserve to be hit with DMCA takedowns. It seems to have started with Haaniyah Angus who live tweeted watching the film. Reading the entire thread is a treat (seriously, go read it), here are just a couple of clips from her live tweeting:

Oh God, there are so many scenes that made me physically cringe. But I think the worst is when her little white brother (whose existence is never explained) says that her father was black “head to toe.” I don’t know why, but that piece of dialogue just made me want to curl up in a ball and scream. Other than that, I think the scene where a Hitler Youth rally takes place in front of Leyna’s apartment and for some reason her first logical thought is, Oh, I’ll go hang with the li’l Nazis. As most would guess, they aren’t happy to see a black girl, and then proceed to call her a nigga. It’s just so much at once ...

At one point in her thread, Angus uses a very short clip from the film to show how the film uses the awful romcom "rush to the airport, and see each other through a crowd of moving people" trope... except in a Nazi labor camp. You can guess what happened next: the producer of the film, Charles Hanson, filed a DMCA takedown notice:

The producer is apparently the person who manually filed this claim since Twitter didn’t. This is just making me yell since If this is damage control there’s nothing you can fix. pic.twitter.com/ANCVnibO2l

Charlie Lyne saw this and wrote a good thread pointing out, why this use of the DMCA to censor negative criticism was clearly bullshit.

It sucks that the producers of Where Hands Touch would resort to DMCA takedown notices to suppress negative tweets about their film. These underhand tactics—which combat Fair Use critiques with heavy-handed anti-piracy legislation—stifle criticism and coddle cinema.

Lyne explains in detail what happened -- even using the same short clip -- to criticize the filmmakers for censoring criticism. You'll surely guess what happens next. Yup! They send a DMCA notice about his thread too:

Yesterday I wrote a Twitter thread about the use of DMCA takedown notices to stifle criticism. Wouldn't you know it, by the end of the day my thread had received one of its own. I'll be contacting a lawyer on Monday before filing a counter notice. https://t.co/AsF2dTNNgU

As Lyne points out, this is not really about the use of a very short clip (with commentary, which is clearly fair use), since the filmmakers seem to be leaving up tweets that show clips that are positive about the film:

And if anyone still thinks this is really about copyright infringement, here’s a tweet sent two days before @hanxine’s thread, which also includes a clip from Where Hands Touch. This one takes a more positive stance, to say the least. It’s still up. https://t.co/GcKkkwwiOM

She says the "video" was "literally just me and my friend laughing over the ridiculousness of one of the scenes" using her smartphone.

The producer of the film, who appears to be manually sending these DMCA notices himself, responded to Gizmodo with a bunch of utter bullshit about how he's only doing this to protect the copyright:

Charlie Hanson, the producer of the film, told Gizmodo in an email that they “do not have the power to stifle criticism of the film. Everyone has been free to comment positively and negatively whether they have seen the film or not.” He argued that the film is only released in the U.S. at the moment, and that Where Hands Touch Ltd. “has only issued DMCA notices regarding breaches of copyright in cases where unauthorised clips of the film have been copied and posted online.”

This is wrong for a variety of reasons. The fact that he admits the film is only available in the US highlights how these short clips -- all used with comment and/or criticism of the film are obviously fair use. The clip that Angus and Lyne both posted was literally 14 seconds out of a movie. That's not impacting the market. The criticism of his shit film might be impacting the market, but the clips are not. It appears that Hanson's Twitter account is the aptly named @CharlieTantrum, which seems to accurately reflect his childish tantrum to criticism of his film. His Twitter feed is ignoring this entire controversy, but is merely reposting gushing tweets about the film instead.

Every so often some "copyright scholar" or "think tanker" will insist that copyright can't be used for censorship and insist that it's actually the engine for free speech. Those people are lying to you. And this is yet another example. Copyright is regularly used for censorship, though in this case, all its really served to do is make it much more widely known why no one should ever bother watching this awful movie.

from the meaningless-fodder dept

For years, the RIAA and MPAA have pointed to the millions upon millions of takedown notices sent to Google as "evidence" that the DMCA notice-and-takedown process doesn't work. You can find lots of examples of this, but here's an MPAA VP making this exact point:

“The large volume of removal requests cited in Google’s Transparency Report clearly illustrates the magnitude of the piracy problem and the ineffectiveness of the ‘notice and take down’ system,” said Chris Ortman, MPAA VP of corporate communications. “If this system were working, the numbers would be going down — not up.”

But here's the thing about that quote: it's almost entirely bullshit. First off, the numbers have started going down, but you don't suddenly hear Chris Ortman and the MPAA saying "look, the notice and takedown system is now working!" Because Ortman wasn't being honest when he made the original statement.

But, the larger point, is that takedown requests, by themselves, don't mean a damn thing about how much infringement there actually is. The requests may be bogus. Indeed, millions of the requests to Google turn out to... not even be in Google's index. Torrentfreak had a recent story pointing out that the top 3 copyright owners alone sent Google over a billion takedown requests. That article further shows just how top heavy the requests are, with the top 16 copyright owners reporting more than 50% of all the takedown requests to Google. In other words, a very small group of organizations very much have their fingers on the scales of how many takedown requests Google receives. So, for those very same organizations to whine that more takedown requests proves anything... is questionable, at best.

And back to that point about many requests not even being in Google's index. As Google's Transparency Report shows, many of those top removal requesters keep requesting links that Google doesn't even have. The 2nd largest requester, for example, is APDIF Mexico. It submitted over a quarter of a billion takedowns. But do those mean anything? Well, let's take a look at its most recent batch of requests:

So... look at that last column. A huge percentage of the URLs were not even in the index. Then look at the column to the left of that. Google removed none of the links requested. Obviously, it can't remove the non-indexed ones, but it appears that even when they were in Google's index, they were deemed non-infringing or, in some cases, duplicates to URLs that had already been received in earlier takedowns. In other words, counting up the number of requests is meaningless when organizations can and do submit URLs that aren't even in Google and when they simply repeat URLs that had already been requested. Anyone could simply re-request the same URL a billion times and it wouldn't say a damn thing about whether the notice-and-takedown system is working.

Or, if you think it's unfair to pick on APDIF Mexico -- an organization many of you have never heard of -- why not look at the RIAA? Of all of the latest requests from the RIAA, I noticed that, once again, it shows no removals by Google. Why? Because the RIAA is submitting duplicates of URLs already removed. This is literally the result of their latest request from earlier today according to Google:

If you can't see that, it shows that 99% of the URLs submitted are duplicates, and the other 1% is still "pending" meaning they might also be duplicates. When the RIAA is submitting links that have already been removed, it kinda makes you wonder if the RIAA and groups like it are simply padding their own numbers to later try to make a bullshit point about how many "takedown requests" Google receives. It certainly highlights the fact that the RIAA does not actually check to see if what they're submitting to Google is actually in Google.

Anyway, the next time you hear the likes of the RIAA or MPAA claiming that the DMCA notice-and-takedown safe harbors aren't working because of the number of takedowns, you can safely note that they are being dishonest.

from the one-piece-of-the-puzzle dept

We've written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG's "vicarious infringement" claims, while letting the "contributory infringement" claims move forward. In October, the court rejected UMG's attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.

The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande's use of the DMCA safe harbor defense. I still have general issues with the idea that the "repeat infringer" part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can't make use of the safe harbors because... it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.

So, without a policy, they couldn't have reasonably implemented it... and thus, no safe harbors. Given the facts of the case, that's perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn't have a policy, but because it didn't follow its own policy).

Of course, that doesn't necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted "that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue." Effectively, UMG will need to show that Grande "induced" infringement by its actions, and Grande will claim it did no such thing. But it can't just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.

from the can't-wait-for-Copyright-Shitposter-2 dept

If you can't stand the heat, whip out the DMCA notices, I guess. Earlier this week, in response to criticism, a game developer hit a YouTuber with dozens of bogus DMCA claims. "Eroktic," who has posted several videos of him playing Battlestate Games' multiplayer shooter "Escape from Tarkov," was on the receiving end of nearly 50 claims.

Rather than pretend this is about copyright by claiming it didn't give Eroktic permission to use footage of its game, the Russian developer has been surprisingly open about its abuse of the DMCA system. Comments given to Polygon's Charlie Hall show Battlestate is well aware it's misusing YouTube's copyright claim process, but says that's the only way it can protect its good name.

“We know what this instrument is designed for,” said a representative, referring to the DMCA claim system. “We had to use this tool in order to stop the wave of misinformation. What’s important to be noted is that we didn’t ban this person in-game. We still allow him to play and to stream [on Twitch] because he never cheated, he never broke the rules of the game, and he never broke the rules of the license agreement on the game. But in his videos he spread a lie, and we had to act fast and stop this.”

The "lies" referred to here are statements made by Eroktic referring to an alleged data leak that exposed user info and passwords. Battlestate claims this never happened, but rather than just address this with a denial, it decided to carpet bomb Eroktic's YouTube account with bogus DMCA claims. Even if someone could construe this to be a justifiable way to deal with alleged misinformation, that doesn't explain why Battlestate filed claims on 44 Eroktic videos containing zero discussion of the data leak.

And it's about far more than a discussion of a supposed data leak. Further comments made by Battlestate say it didn't like the "tone" of Eroktic's videos and promised it would issue more bogus copyright claims if videos containing its game contained "negative hype." Transparency like this is stunningly refreshing, even though that's swiftly overwhelmed by the rank odor of horseshit.

Hopefully, YouTube will penalize Battlestate for abusing the claim process. Battlestate's own statements make it clear the claims it issued weren't valid. That should be enough to remove any strikes handed out by YouTube and return Eroktic to good standing. But that all assumes someone at YouTube is paying attention to what's happening. Given that challenges are at the mercy of a mostly-automated system with zero human operators standing by to take YouTubers' calls, a restoration/smackdown is far from guaranteed.

So, it's another "anomaly" we can file with the hundreds of similar anomalies this site has covered over the years. Give someone an automated tool to target and remove content and it will be abused. The only thing anomalous about this abuse is the perpetrator stating up front that it knows it's abusing the system. This should warn plenty of people away from the developer and its offerings. No one wants to give money to a company that has abused a legal process to shut down criticism.

One of the most recent scams we’ve seen targets various popular game piracy sites, including gamestorrents.tv, fitgirl-repacks.site, freegogpcgames.com, crotorrents.com, nosteam.ro, pcgames-download.com and skidrowreloaded.com.

The notices in question are seemingly sent by prominent names in the gaming industry, such as Steam and Ubisoft. However, the sudden flurry of takedown requests appears to be initiated by scammers instead.

These scammers appear to be going after competitors. The entities behind this wave of bogus takedown notices are gaming Google's search engine via DMCA notices. Much like shady characters trying to vanish unflattering news and blog posts from Google's search results, these shady characters are trying to move their malicious sites higher in the rankings by targeting similar sites offering a similar selection of cracked software.

But rather than go with a straight copyright claim which could be contested and result in a reinstatement, the scammers are using another part of the DMCA -- one that provides no adversarial process.

[T]he notices are not regular DMCA takedowns. Instead, they are notifications that the URLs circumvent technological protection measures such as DRM, which is separately covered in the DMCA.

“Google has been notified that the following URLs distribute copyright circumvention devices in violation of 17 U.S.C. § 1201,” Google informed the site owner.

“Please find attached the notice we received. There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs. If you dispute that you are distributing circumvention devices, please reply with a further explanation.”

That's the way the law works. Takedown notices claiming DRM circumvention (most pirated software involves some sort of circumvention) cannot be contested. Google is allowing replies in these cases, but what it's doing isn't mandated by law. Google, however, is obliged to comply with requests unless it feels the complaint isn't legitimate. How strongly it feels sometimes depends on the manpower available... or the attention the issue is receiving elsewhere on the web.

The notices collected by TorrentFreak hardly seem legit, even with only a cursory review. They're littered with typos and make unrealistic/absurd claims, like supposedly filing on behalf of Steam even though Steam doesn't actually own or produce the game titles listed in the takedown notice.

As TorrentFreak notes, thousands of URLs have already been taken down, pushing malware-loaded sites higher in search listings. Internet users seeking free games now may find they've picked up bitcoin-mining hitchhikers after visiting these scammers' sites.

The good news is Google is paying more attention to these takedown requests and has reinstated some URLs targeted by these malware purveyors. But the fact that this sort of search engine gaming is still effective is further proof the DMCA enables abuse by treating the accuser as inherently credible while limiting the options of those falsely accused.